Friday, December 07, 2012

FB Memes Don't Kill People, People Who Post FB Memes Do

25 States allow anyone to buy a gun, strap it on, and walk down the street with no permit of any kind: some say it's crazy. However, 4 out of 5 US murders are committed in the other half of the country: so who is crazy?

- Andrew Ford

I have no fucking clue who Andrew Ford is, and a google search only offers more questions. I don't care: I read the quotation on a FB meme, so it must be true.

Anyway, I hate these goddamned things. They take important issues and make them sound so pat, like there's no reason at all for people to have different perspectives, different goals, and different means to their ends. And often, they're just fucking objectively wrong.

Now let's take a liberal's favorite mandate (to show that there's precedent for Obamacare's insurance mandate), the Second Militia Act of 1792:

That every citizen, so enrolled [in the Militia] and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Certainly it was for regulating a militia, but notice the legislation didn't say to keep arms stockpiled somewhere. They were to be kept by individuals, who were compelled to purchase the minimum necessary equipment.

Indeed, the militia was to be "composed of the body of the people" as some state constitutions said at the time. That hardly negates, but rather reinforces, the notion that individuals were expected to bear arms. Per the English Bill of Rights, which clearly influenced our Framers, that was in part due to a protected right that people were expected to exercise. And do not forget the more explicit language contained in the contemporaneous state constitutions of Vermont, Pennsylvania and New Hampshire, not to mention Madison's original wording (before it was mangled by Congressional committee) in his proposed Bill of Rights:

The right of the people to keep and bear arms shall not be infringed...

But let's step beyond the Second Amendment for a moment. While no clauses in the Constitution can be presumed to have no intended effect, they neither can be considered outside the context of the whole document and its genesis.

If major cases that establish things like the right to privacy rest to some degree on penumbral emanations, one would think that individual rights to bear arms would be as well. For instance, Griswold:

[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman,367 U.S. 497, 516-522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Wouldn't the fact that the BoR is fundamentally an enumeration of individual rights lead one to conclude that the right to bear arms isn't merely a collective one? Or does the First Amendment only guarantee the right of MANY people to assemble, or the Fourth Amendment only guarantee that communes be secure? If I have a right to be free from forced quartering of the soldiery, do I not have a right to defend my home from such tyrannical acts with arms? And has the Ninth Amendment no say in the matter?

No, it's pretty clear that the issue is settled when you honestly examine the Constitution as a whole, as well as the original environment from whence it came. And, of course, more recently with rulings from the Supreme Court.

Now the question remains as to where the reasonable bounds of this individual right actually lie since rights inevitably come into conflict with others. When you consider the First Amendment, most people acknowledge there are limits: you can't yell "Theatre!" in a crowded fire; one must not slander/libel another; we can establish buffer zones around Planned Parenthood so people can exericse their other constitutional rights to self-determination.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26[Footnote: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”...

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Not all aspects of this right have been explored in the courts just yet. But I think it's undeniable that the individual right is a done deal, and incorporated against the states as well, so let's leave that battle now. How far does that right go?

I'm fairly certain it's not so limited that Michelle Obama's secret plan to seize all weapons once she secures an unconstitutional third term in 2024 will work. I'm also fairly certain that we can't just go purchase nukes from Iran and keep them in our garden shed. I guess the answer is somewhere in between those extremes, and in between whatever bullshit is found in Facebook memes.